Carroll v. California Department of Corrections ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ABONILICO CARROLL, Case No.: 19-cv-2126-BAS-KSC 14 Plaintiff, ORDER DENYING PLAINTIFF’S 15 v. RENEWED MOTION FOR APPOINTMENT OF COUNSEL 16 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 17 [Doc. No. 42] Defendants. 18 19 20 21 22 Plaintiff Abonilico Carroll is proceeding pro se and in forma pauperis in this civil 23 rights action pursuant to 42 U.S.C. § 1983, alleging defendants violated his rights under 24 the United States Constitution. See Doc. No. 1. Before the Court is plaintiff’s renewed 25 Motion for Appointment of Counsel (“Motion” or “Mot.”). Doc. No. 42. For the reasons 26 stated below, plaintiff’s Motion is DENIED WITHOUT PREJUDICE. 27 /// 28 /// 1 I. BACKGROUND 2 On November 5, 2019, plaintiff filed a complaint alleging that defendants violated 3 his rights under the Eighth and Fourteenth Amendments. Doc. No. 1. Since the dismissal 4 of his initial complaint, plaintiff has filed two amended complaints. See Doc. Nos. 2, 20, 5 30. On March 29, 2021, defendants answered the operative Second Amended Complaint. 6 Doc. No. 36. On May 7, 2021, the Court issued a pretrial schedule, setting deadlines for, 7 inter alia, the completion of fact and expert discovery and the filing of dispositive motions. 8 Doc. No. 40. 9 On December 16, 2020, plaintiff moved to have counsel appointed. Doc. No. 33. 10 The undersigned denied that motion without prejudice on January 6, 2021, finding that 11 plaintiff had not shown that he was unable to articulate his claims and that he was likely to 12 succeed on the merits of those claims. Doc. No. 34 at 5. The Court explained that plaintiff 13 could “renew his request if his situation changes such that he can make the necessary 14 showing that he is both likely to succeed on the merits of his claims, and unable to 15 competently articulate those claims.” Id. 16 II. DISCUSSION 17 As the Court has stated, “there is no absolute right to counsel in civil proceedings.” 18 Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). Where “exceptional 19 circumstances” exist, the Court may in its discretion appoint counsel to represent an 20 indigent litigant. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). But, such 21 “exceptional circumstances” exist only where a plaintiff demonstrates that he is likely to 22 succeed on the merits of his claims, and that he is unable to effectively articulate those 23 claims. Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). 24 “A plaintiff that provides no evidence of his likelihood for success at trial fails to 25 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No. 26 14cv2911-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). Here, plaintiff 27 merely reiterates the allegations in his operative complaint. Mot. at 2, 4-5, 6. The fact that 28 some of these allegations survived initial screening “by no means demonstrates that 1 [plaintiff] is likely to win.” Ortega v. CSP-SAC Prison Officials, No. 2:08–00588 SOM, 2 2010 WL 2598228, at *1 (D. Haw. June 7, 2010). At this early stage of the proceedings, 3 there is no basis upon which the Court may predict plaintiff’s success at trial. Thus, the 4 Court reaffirms its determination that this factor weighs against appointing counsel to 5 represent plaintiff at taxpayer expense. See Doc. No. 34 at 3-4. 6 Nor has plaintiff shown that he lacks the ability to pursue his claims. Plaintiff asserts 7 that his claims are “factual[ly] complex” as they will require “expert testimony,” and that 8 he lacks the resources to conduct the necessary discovery to develop evidence and prove 9 his claims at trial. See Mot. at 6. The Court considered these facts in denying plaintiff’s 10 previous request for counsel, and found that plaintiff’s “need to conduct discovery [and] 11 take testimony from witnesses” were not exceptional circumstances but instead were 12 “common among all incarcerated litigants and indeed all participants in civil litigation.” 13 Doc. No. 34 at 4. The Court reaches the same conclusion here. 14 Plaintiff also states he is an “indigent” and “a novice and layperson of the law.” Mot. 15 at 1, 3, 7. The Court previously considered these facts and reiterates its finding that they 16 do not establish exceptional circumstances. See Doc. No. 34 at 4 (citing Wood v. 17 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990)). While it may be true that plaintiff’s 18 lack of legal expertise places him at a “disadvantage” relative to a lawyer with both training 19 and experience in litigation (Mot. at 7), that does not render his case exceptional. See 20 Williams v. Lozano, No. 1:15-cv-01250-BAM (PC), 2018 WL 558765, at *1 (E.D. Cal. 21 Jan. 25, 2018) (noting that most incarcerated litigants are “not well versed in the law”). 22 Similarly, plaintiff’s limited access to the law library (see Mot. at 1, 7) is also a common 23 hardship and does not create exceptional circumstances warranting the appointment of 24 counsel. See Faultry v. Saechao, No. 18cv1850-KJM-AC-P, 2020 WL 2561596, at *2 25 (E.D. Cal. May 19, 2020) (denying motion for appointment of counsel and explaining that 26 “[t]he impacts of the COVID-19 health crisis on prison operations are … common to all 27 prisoners”). However, as stated before, the Court will consider any reasonable request by 28 plaintiff for additional time to meet the Court’s deadlines. 1 Finally, plaintiff complains that due to his medical issues he lacks the ability to 2 “focus” and therefore cannot effectively articulate his claims. Mot. at 1. The Court finds 3 || this assertion is undermined by plaintiffs considerable filings to date: an initial complaint, 4 ||two amended complaints, a motion for leave to proceed in forma pauperis, two motions 5 || for the appointment of counsel, a motion for access to the law library, and various ex parte 6 || letters to the Court. These filings demonstrate to the Court that plaintiff understands basic 7 || litigation procedure and can effectively articulate his claims, notwithstanding any medical 8 |/issues affecting his concentration. 9 ORDER 10 For the reasons stated above, plaintiff's Motion for Appointment of Counsel [Doc. 11 42] is DENIED WITHOUT PREJUDICE. As before, if plaintiff's circumstances 12 || change such that he can make the necessary showing that he is both likely to succeed on 13 merits of his claims, and unable to competently articulate those claims. Cano, 739 F.3d 14 1218. 15 || IT ISSO ORDERED. 16 Dated: May 14, 2021 lj i “y) 17 WU LA _———_ 18 Hori. Karen S. Crawford United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28